Rep. LaMonica McIver (D-N.J.) is being prosecuted after her May 9 attempt to inspect a Newark ICE facility.Angelina Katsanis/AP
Over and over again, Democratic members of Congress have attempted to enter Immigration and Customs Enforcement facilities to investigate the conditions inside—and again and again they have been turned away, even though federal law guarantees them access to ICE detention facilities in order to conduct oversight. The Trump administration’s decision to keep lawmakers out created a Constitutional showdown.
The case will test constitutional checks and balances.
Now, the issue is heading to court. On Wednesday, 12 Democratic House members sued for access to ICE detention facilities, in accordance with the law. The case is important to US immigration policy, and to the Trump administration’s goal of detaining immigrants without oversight into conditions in those facilities. It also raises a larger question: Can the executive branch turn off an oversight duty that is not just implicit in Congress’ powers but that it specifically inscribed in law?
Since 2019, Congress has included language in its bills funding the Department of Homeland Security that guarantees members of Congress access to inspect ICE detention facilities without prior warning, so as to get an unvarnished view of conditions inside. This came as a direct result of members of Congress being turned away from DHS facilities holding minors during the first Trump administration’s policy of separating children from their parents.
As detailed in Wednesday’s lawsuit, over the past few months ICE has come up with new reasons to deny entry to members of Congress and their designated staff. Though federal law allows for unannounced visits by lawmakers and 24 hours notice for their staff, ICE unilaterally instituted a seven-day notification requirement. But even when lawmakers provide a week’s notice, they have been turned away. In June, for example, despite giving seven days notice, New York Reps. Jerry Nadler and Dan Goldman found themselves denied entry to a detainee holding space in Manhattan by an ICE official wearing a novelty Guinness shirt with the top buttons undone—an indelible image of an agency with no respect for the first branch of government.
According to the lawsuit, filed by the legal groups American Oversight and Democracy Forward, Goldman and Nadler were turned away because ICE insisted the 10th floor of its New York field office was not a detention facility. Even though ICE was holding people there, some for more than two days, the agency claimed that it fell outside the scope of Congress’ authority to enter ICE facilities “used to detain or otherwise house” detainees.
The lawsuit alleges multiple legal violations on the part of DHS and asks a federal district court in Washington, DC to compel the agency to comply with their oversight requirements.
This case could determine whether ICE, which will receive $45 billion in additional funding under President Donald Trump’s new budget bill, will operate its ballooning detention schemes in increasing darkness. As the Trump administration seeks to detain and deport millions of people, congressional oversight provides a critical window into how detainees are being treated. Reports of overcrowded and inhumane conditions are already prevalent.
The case will also test the checks and balances that each branch can impose upon the other. In this case, members of Congress are relying not only on their historical oversight role, which is critical to its legislative function, but also on an explicit ability to investigate ICE detention facilities that it has repeatedly written into law.
When administration lawyers respond to the suit, they could argue that the lawmakers are misreading the statute, or they could swing big and argue that immigration is an executive function where Congress has no constitutional role. It could also argue that individual members of Congress cannot sue to vindicate their rights, and instead that only a suit brought by a majority of Congress—now controlled by Republicans—would have standing. Finally, they could argue that the current oversight ability, enabled by a portion of a congressionally-appropriated funding bill, does not carry the necessary force to require ICE compliance. If accepted, any of these arguments would diminish Congress’ role in our scheme of checks and balances.
At the Supreme Court, the GOP majority has moved toward a maximalist view of executive power in recent years while curtailing Congress’ own powers—a change in the law that has accelerated upon Trump’s return to office. That has included skepticism of Congress’ ability to issue requirements through spending bills, as if some of the laws Congress passes carry less force than others.
The justices may quickly be asked to respond. Over the past six months, the administration has rushed to the Supreme Court for emergency relief when lower courts rule against them, where the Republican-appointed majority has generally given them what they want.